Troops at the Southern Border: William C. Banks Speaks to Vox

The Pentagon is resisting Trump’s most controversial military requests for the border

(Vox | Nov. 5, 2018) Resistance to President Donald Trump’s strong-handed military proposals to counter a caravan of immigrants headed toward the US-Mexico border is coming from a surprising place: the Pentagon.

When the Department of Homeland Security (DHS) requested troops at the border, it asked the military to perform emergency law enforcement functions like crowd control. But the Pentagon rejected that request in late October in part because it felt active-duty troops don’t have the legal authority to arrest individuals on US soil.

That’s not all: DHS also asked the Defense Department if troops could build detention facilities for migrants trying to enter the United States. The military didn’t like that proposal, however, and DHS didn’t include it in its final request to the Pentagon about what it hoped troops would do.

It’s not unusual for different government agencies to discuss how, exactly, they will work together. In this case, DHS and the Pentagon negotiated what kind of support the military will provide at the border and came to an agreement.

That’s why it’s so striking that Trump continues to say the military will take actions it likely won’t ...

... US troops can’t detain, arrest, or search anyone at the border. That’s a law enforcement function, and the military can’t perform those duties on US soil unless there’s no other way to enforce the law, William Banks, an expert on the military’s domestic authorities at Syracuse University, told me.

However, the military has been used for law enforcement needs in dire situations, such as during the 1992 Rodney King riots in Los Angeles. Then-President George H.W. Bush invoked the Insurrection Act to enforce the law because he deemed it impossible for other law enforcement to do so.

But the roughly 7,000 troops at the border now can only improve walls and infrastructure, work in offices, transport border officials in aircraft, and offer medical help — little more. They shouldn’t have any interactions with individuals at the border unless absolutely necessary.

That, in part, led Banks to say the use of active-duty troops to defend against the caravan was unlawful on its own. “If we were attacked by Mexico, we’d be there lawfully,” he told me, “but there’s no justification for it here" ...